This regulation should be repealed. It does not serve the Commonwealth or small businesses. It created a separate bureaucracy parallel to the State Corporation Commission and it is inadequately trained to perform its duties effectively; the regulation was poorly written, leading to lawsuits; and the regulation does not have an effective management controls or an oversight body ensuring accountability of its actions. This regulation has caused far more harm than good and has resulted in absolutely zero value in all the years in which it has been in force as there are no onshore wind energy projects that have been constructed under its purview.
Regulatory Town Hall Comment
Small Renewable Wind Energy Projects Permit by Rule
Being one of just a few dozen people in Virginia who have had personal experience with the PBR for “small” wind projects, I believe that I am highly qualified to make some comments “to determine whether this regulation should be repealed, amended, or retained in its current form.” My opinion is that the current form of the PBR is a complete failure with respect to its goal of being “necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.” My conclusion is that the current PBR should be repealed or significantly amended. My reasons for this conclusion are listed below.
As some background before I begin the list, I have been involved with the effort to prevent the construction of the Rocky Forge Wind project in Botetourt County along a mountain ridgeline which is zoned as a Forest Conservation District. This project will require the construction of several miles of access roads, and destruction of over 200 acres of forest habitat that is a watershed for class IV wild trout streams. The proposed turbines will be 680’ to the tips of the blades, the tallest structures on land in Virginia, and will kill eagles and bats. Blasting foundations will result in altered surface and groundwater flows, and will require hundreds of loads of concrete. The total cost for this project is many millions of dollars. It is important to note that Rocky Forge is the only project for which the PBR for wind has been applied.
Below are my comments on the failures of the PBR.
May 18, 2023
The Permit by Rule Regulation (PBR) regulation process for small renewable wind energy projects fails to protect citizens, communities, the environment and governmental entities.
To Whom It May Concern,
Advanced Energy United (“United”) respectfully submits the following comments in response to this periodic review of the Permit by Rule (PBR) Process for Small Wind Projects. United is a national association of businesses committed to making the energy we use secure, clean, and affordable. We are the only industry association in the U.S. that represents the full range of advanced energy technologies and services, including companies involved in the manufacture, installation, and operation of wind energy generation. We represent over 100 companies in the $240B U.S. advanced energy industry, which employs over 3.2 million American workers, including over 97,000 people in the Commonwealth.
We are writing today to encourage the Department of Environmental Quality (DEQ) to retain the PBR process for small wind projects in its present form. These regulations streamline permitting for wind projects, reduce bureaucratic burden both on private companies and government, and provide a predictable framework for wind project developers. This predictability helps attract business and capital investment to the Commonwealth, facilitating the direct and indirect economic benefits that flow from renewable development. At the same time, this framework does not override the rights and powers of localities and landowners, ensuring that all stakeholders have a say in project development. Here are five reasons why Virginia's permit by rule regulations for wind projects should be retained.
First, PBR simplifies the permitting process, making it more efficient and less time-consuming. By establishing clear guidelines and standards, developers can navigate the regulatory landscape with greater ease and certainty. The development of wind generation projects, including small projects, requires extensive upfront capital investment. Legal and regulatory uncertainty is one of the primary obstacles to securing such investment. Reducing such uncertainty helps facilitate wind development and drives investment into the Commonwealth.
Second, the PBR process helps reduce the administrative burden upon state regulators and, thereby, the cost to Virginia taxpayers. PBR does this not by eliminating regulations – indeed small wind projects must still adhere to rigorous standards for noise levels, setback distances, and other environmental factors to receive a permit – but instead by placing that administrative burden on the project developer rather than DEQ staff. By setting clear guidelines, PBR strikes a balance between renewable energy development and other community priorities. Indeed, it is worth noting that state-level PBR standards do not override local permitting processes, nor other legal standards such projects may meet.
Third, these regulations contribute to economic growth and job creation in Virginia. By providing a predictable framework, wind project developers, which often develop solar, storage, and other clean energy resources as well, are more inclined to invest time, energy, and capital in the Commonwealth’s energy sector. Not only can wind development produce jobs directly – in the form of manufacturing, construction, operations, and maintenance positions – but also indirectly – by helping support local goods and service providers.
Moreover, as shareholders require more and more companies to meet rigorous suitability standards, including decarbonization of their energy footprints, Virginia’s PBR standards help to facilitate decarbonization of the Commonwealth’s electric grid, a key draw for such companies. This is particularly salient given one of the key drivers of economic growth in the Commonwealth. Virginia as benefited from the rapid expansion of the data center industry. Leaders in this industry, including a number of firms in United’s membership, have robust clean energy standards. PBR helps to ensure that they will be able to expand that footprint while meeting their (rising) sustainability commitments.
Fourth – and building upon the prior point – PBR helps the Commonwealth meet its overall clean energy standards. In 2020, the General Assembly passed, and the Governor signed into law, the Virginia Clean Economy Act (VCEA). This law requires Virginia’s investor-owned utilities (Dominion and Appalachian Power) to reach 100% clean energy on the Virginia grid by mid-century. Decarbonizing Virginia’s grid while maintaining reliability and affordability will require the swift and substantial development of a diverse mix of clean energy resources, including wind generation. By facilitating the development of wind projects, PBR enables this reliable and affordable transition to a more sustainable energy mix.
Lastly, it is worth noting that Virginia’s PBR regulation applies not only to wind energy, but also a range of other advanced energy generation and storage technologies. While only that segment of the regulation regarding wind energy is under review at this moment, undoing even a portion of the rule is likely to have a chilly effect upon the generation and storage industries as a whole. Project developers would be prompted to reconsider the stability and predictability of Virginia’s regulatory regime and may be inclined to move staff and capital elsewhere, to more conducive and reliable markets.
In conclusion, Virginia's permit by rule regulations for wind projects offer numerous advantages. They streamline the permitting process, reduce administrative burden while preserving the rights of localities and landowners, promote economic growth, facilitate Virginia’s clean energy transition, and establish a stable, attractive business climate. By creating a favorable environment for wind energy development, these regulations position Virginia as a state open for business.
We appreciate the opportunity to provide these comments and welcome any questions or inquiries the Department may provide.
Repeal the Permit by Rule Regulation for Small Renewable Wind Energy Projects
The Permit by Rule Regulation (PBR) regulation process for small renewable wind energy projects FAILS to protect citizens, communities, the environment and governmental entities.
The Rocky Forge project by Apex in northern Botetourt County is NOT a small renewable wind project—it is a large-scale industrial construction project, which will irrevocably alter the natural beauty of North Mountain, spoiling the peace and serenity so valued by the residents and the tourists who come here to enjoy the outdoors.
The PGR regulation and the Rocky Forge project FAILS to protect the health, safety and welfare of the citizens and the environment.
Concerned resident of Rockbridge County
The purpose of the PBR regulation was to simplify the permitting process for small renewable energy projects. Witnessing the process for the Rocky Forge project, the process goes too far by not having a rejection criteria. It is apparent that a company receives approval by simply submitting the required information, regardless of its content or accuracy . A couple of examples are:
The regulation should be modified include some higher rejection criteria other than just checking off boxes.
I agree with other comments addressing the size vs rated energy capacity.
On behalf of MAREC Action (MAREC informally stands for “Mid-Atlantic Renewable Energy Coalition”), I respectfully submit the following comment in SUPPORT of retaining Virginia’s Small Renewable Wind Energy Projects Permit by Rule (PBR) regulations. MAREC Action is a non-profit coalition of utility-scale wind, solar and energy storage businesses dedicated to the growth and development of renewable energy in Virginia and across the PJM grid region.
The PBR regulations continue to work well in Virginia, allowing for the deployment of low-impact wind (and solar) projects less than 150 megawatts (MW) in a comparatively expedient fashion. Renewable energy sources, with no fuel consumption, are some of the least expensive sources of energy available today. As the PJM Interconnection notes in their Third Phase of Energy Transition Study (published Feb. 2023), it is critical for more energy sources to come online with power plant retirements at risk of outpacing the construction of new resources. Virginia’s PBR regulations help ensure that state law does not contribute to or worsen various, and sometimes project-killing, delays. Even as the PBR rules expedite project permitting, they preserve public feedback and rigorous environmental assessments.
Permitting more wind farms, faster, will unlock private investment and job creation across Virginia. Already, Virginia’s clean energy industry has created nearly 7,000 in-state jobs and invested over $5 billion in the Commonwealth. Though much of the current clean energy development pipeline utilizes solar technology, wind projects should be encouraged to compete and be permitted where technologically feasible. Ensuring robust deployment of solar, wind, and other clean energy resources will provide Virginia’s homes and businesses with affordable, reliable power for years to come.
Streamlined PBR regulations are a good fit for the wind industry. Wind energy arguably has the smallest environmental impact of any energy resource, producing no air or water pollution and creating comparatively small disruption to the landscape. Those already small impacts continue to shrink as technology improves. The average capacity of newly installed U.S. wind turbines in 2021 was 3.0 megawatts (MW)—up 9% since 2020 and 319% since 1998–1999. This upward trend in the power rating of individual wind turbines has resulted in reduced project footprints over time.
As previously stated, we support the retention of the PBR program for small wind projects. We also suggest one amendment that would better align the regulation with the development process. As projects proceed from land acquisition through permitting, it is common that small design adjustments or technological enhancements are identified that could improve a project’s efficiency or lessen local impacts. For example, wind turbine technology is advancing rapidly to the point of more efficient turbines with a smaller footprint potentially being available at the end of the development process compared to what was proposed at the start of the PBR application. We propose that the PBR process could be modified to allow some minor changes to project design without triggering a full permitting reset and restudy, assuming studies of the originally proposed project show minimal or no impact to various environmental resources.
We thank the Virginia Department of Environmental Quality for its diligence in implementing regulations that protect the environment and enable the deployment of wind energy and other energy resources. MAREC Action staff and its members would be glad to elaborate on the merits of this program, our proposed amendment, and address questions from the Department.
Several years ago in an authorized DEQ open comment with Apex Clean Energy regarding Rocky Forge LLC in Botetourt, County, I specifically asked how many wind turbines were to be built along with the coordinates. Apex responded that had not been determined as yet; however, Rocky Forge LLC had already applied for 22 sites with coordinates as noted by the FAA Aeronautical Study 2019-WTE-8774-OE representing all 22 sites. DEQ was informed of this without any action on their part.
Infrasound is known to create health issues to humans although wind energy companies will deny this. In 2017, the Massachusetts Courts ordered the City of Falmouth to shudder it's wind turbine facilities due to 22 plus medical cases were settled due to Infrasound. In the past two years, whales who died on the beaches of New Jersey have been linked to Infrasound supposedly linked to an offshore wind turbine facility. There is another wind turbine project called Pinewood which is proposed by Apex to be built on land owned by the Blue Ridge Mountains Council located in Pulaski County VA which overlooks Powhatan Boy Scout Camp putting the lives of Boy Scouts and Staff at risk. Will DEQ investigate Rocky Forge and Pinewood to protect people? Probably not!
There is no Power Purchase Agreement with Dominion Energy, Virginia, with Rocky Forge, LLC at this time. In a letter dated Decembe19, 2022 from Attorney Jacqulynn Hugee with Dominion Energy, she states "It is Dominion Energy's understanding that this project is being developed by Rocky Forge LLC, an affiliate of Apex Clean Energy, Inc. To update our prior responses, please be advised that Dominion Energy and its subsidiaries do not own the project, are not currently developing, building or operating the project, nor do they have any application pending to do so." Furthermore, there is no current interconnection agreement between PJM LLC with Dominion Energy and Rocky Forge LLC. Further, it is my understanding that no wind energy projects in Virginia have been applied for since January 21, 2022 when Rocky Forge LLC applied for 13 new sites with coordinates without advising DEQ. Without a Current Interconnection Agreement and Power Purchase Agreement, why will DEQ allow this project to move forward as it will sit idle and rot?
Although DEQ and the FAA have no jurisdiction over each other, there are many active military low level high speed training routes that aircraft fly over Rocky Forge versus one. Should an aircraft go down, water cannot put out aviation fuel fires as Botetourt County does not have the equipment or training. In 1971, I fought a forest fire in north Botetourt County called the Rathole Mountain fire. Due to the terrain, it was difficult to get equipment to help fight that fire. Over 3000 acres were burned with the loss of life . In fact, the group I was with had to run from being engulfed in that fire. One fire fighter was burned alive as I recall. The fire was started by a child playing with matches. Does anyone recall or remember that fire?
As a former investigator, DEQ lacks the training to properly investigate; therefore I recommend that the Permit By Rule or PBR for renewable energy be repealed.
Dave Condon, Resident of Botetourt County, VA
This comment is in response to the submittal by Harrison T. Godfrey, the Managing Director of Advanced Energy United. I am making this response because some of the “benefits” that he claims the PBR produces for Virginia, are, in fact, detriments. Below are several comments in response to some of the statements made by Mr. Godfrey.
In closing, the PBR for “small” wind projects must be revoked or significantly revised to ensure that the environment and the citizens of Virginia are adequately protected. Making it easier for large, multi-billion corporations to destroy the environment and harm citizens does not meet the requirements of the Virginia Constitution.
May 29, 2023
Having submitted two other comments, the Town Hall review team may be irritated to have a third one from me. But, I think it is necessary to raise an issue that I have not seen in other submissions. And that issue is the handling of the public comment requirement in the “small” wind PBR. Below is an excerpt of a comment I submitted following the public comment meeting for the Rocky Forge Wind project:
The failure of Apex to comply with Code of Virginia § 10.1-1197.6 is perhaps the most egregious of the two violations described in this comment. That is because it is the simpler of the two. All it requires is common courtesy and respect for individuals, qualities that should be common business practice. The details of this violation are described below.
A friend of mine who attended the public comment meeting at the Fincastle Community Center on June 15, 2022 attempted to have a conversation with some of the Apex employees who were in attendance. He was not permitted to do so by Robert Loftin, an attorney for Apex. My friend described what happened:
Jeff and all, before you got there, I talked with the two of the Apex people sitting at the table and asked them a few questions. Loftin came over and told me I could not talk to them, that time was a public comment time and I could submit written or oral comments. He did not allow me to have a conversation with Apex.
So, this is the method that Apex uses to facilitate communication, and to establish a dialogue between the owner or operator and persons who may be affected by the project. A more blatant disregard for the regulation could not be imagined. I also attempted to ask questions of Karlis Povisils (Apex Senior Vice President of Development) who was at the meeting and was not busy with any other persons, but he refused to answer any of my questions.
I strongly urge the Town Hall review team to carefully review all of the comments in full (and not just the summaries provided by Apex) that were submitted by the public, and the responses that were, or were not, made by Apex to the comments. The documents of interest are identified as Attachment 13, with various suffixes. In doing the review you will see the many significant questions and comments about the many different impacts that Rocky Forge would have. If, after that review you can honestly say that the PBR for “small” wind projects does not need to be repealed, or that significant changes do not need to be made, then there is no hope for the environment or the citizens of Virginia.
May 29, 2023
Rocky Forge Wind project is not a small wind energy project and should not be ruled under the PBR.
The PBR does not take into account the adverse health effects wind turbines may have on people.
The PBR does not offer adequate protection from wind turbines for Bald Eagles , Golden Eagles and endangered bat species.
The PBR does not protect our beautiful mountain views from unsightly industrial wind projects.
The negative impact of the Rocky Forge Wind project does not stop at the county line. The PBR does nothing to address those negative impacts on surrounding counties.
The PBR should be repealed because it is totally biased in favor of industrial wind projects and discriminates against anyone or anything that may be negatively impacted by those projects.
Streamlined PBR regulations may be a good fit for wind energy corporations but they are a bad and catastrophic fit for for citizens, communities, governmental entities and the environment.
Permitting wind turbine projects faster is the wrong answer.
The PBR regulation process of simply granting approval if required documents are submitted without any evaluation of validity and accuracy is wrong. The simplistic procedure of a wind energy company checking the right boxes is a wrong way for a PBR to be granted when so much is at stake.
The PBR regulation process creates a public health and safety risk with failure to protect citizens from dB sound, infra-sound, and fire and contamination hazards.
The PBR regulation process fails to protect adjoining counties and government entities that must have a defined voice in the permitting process approval or denial.
The PBR regulation process fails to protect conserved land and fails to protect citizens from reduction in property values.
The PBR regulation process should not be a streamlined rubber-stamped pathway for corporations to build large scale industrial wind turbines in fragile non-renewable mountain ridge lines.